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Conway v. United States

United States District Court, D. Montana, Great Falls Division

December 17, 2018

JEFFREY P. CONWAY, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER

          JEREMIAH C. LYNCH, UNITED STATES MAGISTRATE JUDGE

         This negligence action comes before the Court on Defendant United States of America's motion for summary judgment and motion to dismiss a petition by United States employee Jason Hardy to certify that he was acting within the scope of his office or employment at the time of the underlying incident giving rise to Plaintiff Jeffrey Conway's claims. Because the United States has not waived its sovereign immunity as to Conway's tort claims, the United States is entitled to summary judgment and Captain Hardy's petition to certify is properly dismissed.

         I. Background[1]

         Conway was injured in a motor vehicle collision in the early morning hours of Sunday, September 7, 2014, when the vehicle he was driving was struck head on by a vehicle driven by Hardy. At the time of the incident, Hardy was an active duty captain with the United States Air Force, stationed at Malmstrom Air Force Base in Montana. Hardy's work assignments were consistent with a Monday through Friday day shift schedule, and he was off-duty for the weekend when the incident occurred.

         On Saturday, September 6, 2014, Hardy attended a friend's wedding in the afternoon or early evening, went out for a meal, and then returned to his off-base apartment. Later that evening, Hardy walked to a bar and grill where he helped as an assistant to the bartender. After that, Hardy met friends at a different bar and then walked back to his apartment. Hardy does not remember anything that happened between arriving home from the bar late that night and waking up in the emergency room after the incident.

         Following the incident, the Air Force initiated a “line of duty” investigation pursuant to Air Force Instruction 36-2910 Line of Duty (Misconduct) Determination for purposes of determining Hardy's eligibility for certain government benefits. Retired Lieutenant Colonel Keith Hepler carried out the investigation, and ultimately determined that Hardy had engaged in a bona fide suicide attempt secondary to preexisting combat-related post-traumatic stress disorder, traumatic brain injury, alcohol abuse, alcohol dependence, and major depressive disorder. (Doc. 37-2, at 46). As a result, Hepler concluded that Hardy was in the line of duty at the time of the incident.

         In August 2017, Conway commenced this action against the United States pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), alleging claims for negligence and negligent supervision. The United States moves for summary judgment on both claims on the ground that it has not waived sovereign immunity and subject matter jurisdiction is thus lacking. The United States also moves to dismiss Hardy's petition to certify that he was acting in the scope of his office or employment because he is not a party to this proceeding.

         II. Summary Judgment Standards

         Under Federal Rule of Civil Procedure 56(a), a party is entitled to summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The party seeking summary judgment bears the initial burden of informing the Court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). A movant may satisfy this burden where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 251 (1986).

         Once the moving party has satisfied its initial burden with a properly supported motion, summary judgment is appropriate unless the non-moving party designates by affidavits, depositions, answers to interrogatories or admissions on file “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. 317, 324 (1986). The party opposing a motion for summary judgment “may not rest upon the mere allegations or denials” of the pleadings. Anderson, 477 U.S. at 248.

         In considering a motion for summary judgment, the court “may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., 530 U.S. 130, 150 (2000); Anderson, 477 U.S. at 249-50. The Court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in the non-moving party's favor. Anderson, 477 U.S. at 255; Betz v. Trainer Wortham & Co., Inc., 504 F.3d 1017, 1020-21 (9th Cir. 2007).

         III. Discussion

         “The United States can only be sued to the extent that it has waived its sovereign immunity.” Baker v. United States, 817 F.2d 560, 562 (9th Cir. 1987). The FTCA provides a waiver of sovereign immunity, making the United States liable to the same extent as a private party for certain torts committed by federal employees acting within the scope of their employment. United States v. Orleans, 425 U.S. 807, 813 (1976). The FTCA's waiver of sovereign immunity must be strictly construed in favor of the United States. Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000).

         The FTCA's waiver of sovereign immunity is not without limitation. Relevant here, the waiver is limited to claims based on conduct by a federal employee “acting within the scope of his office or employment…” 28 U.S.C. § 1346(b)(1). The waiver is also subject to several specific exceptions, including the discretionary function exception. 28 U.S.C. § 2680. The discretionary function exception bars “[a]ny claim…based upon the exercise or performance or the failure to exercise or perform a discretionary function ...


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